ARTICLE 370

Session 2015-2020

SUBJECT – CONSTITUTIONAL LAW

SUBMITTED BY :- SUBMITTED TO :-

Prof. K.L. BHATIA

ISHAN SRIVASTAVA (1414)

VEDANT SHARMA (1445)

3rd Year, 6th Semester

B.B.A. LLB. (Hons.)

CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR ,PATNA

1
 ACKNOWLEDGEMENT

It gives me immense pleasure to express my gratitude towards all those who have helped and
encouraged me for the completion of this project. They all rendered their valuable time and services
in making this project a success. I would like to thank the all mighty God for blessing and giving me
support in completing this project. I take this opportunity to express my deep regards to my guide
Prof. K.L. Bhatia ,For his exemplary guidance, monitoring and constant encouragement throughout
the course of this thesis.

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 TABLE OF CONTENTS

INRODUCTION …………………………………………………………………………..(4)

ANALYSIS…………………………………………………………………………………(7)

CONTITUENT ASSEMBLY OF JAMMU & KASHMIR ……………………………..(8)

PRESIDENTIAL ORDERS……………………………………………………………….(9)

AUTONOMY OF JAMMU AND KASHMIR: STRUCTURE & LIMITATIONS…...(12)

THE DELHI AGREEMENT 1952 ……………………………………………………….(13)

APPLICABILITY OF INDIAN LAWS…………………………………………………. (15)

ARTICLE 370: A HISTORICAL VIEW………………………………………………... (16)

CONSTITUITION OF JAMMU & KASHMIR………………………………………….(18)

FACTORS RESPONSIBLE FOR LIMITED ABSORPTION OF JAMMU AND KASHMIR

WITHIN INDIAN CONSTITUTIONAL STRUCTURE………………………………...(21)

CONCLUSION……………………………………………………………………………...(23)

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BIBLIOGRAPHY…………………………………………………………………………...(24)

INTRODUCTION

Article 370 of the Constitution of India relating to the State of Jammu and Kashmir is now over sixty
years old. The Constitution came into force on 26 January 1950 and with it, this unique provision.
All other provisions were debated in the Constituent Assembly of India after deliberations in its
Drafting Committee and, sometimes, in discussions in the Congress Parliamentary Party.

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu
and Kashmir. The article is drafted in Part XXI of the Constitution: Temporary, Transitional and
Special Provisions. The State's Constituent Assembly was empowered to recommend the articles of
the Indian constitution to be applied to the state or to abrogate the Article 370 altogether. After the
state Constituent Assembly dissolved itself without recommending abrogation, the Article 370 was
deemed to have become a permanent feature of the Indian Constitution. 1

The state of Jammu and Kashmir's original accession, like all other princely states, was on three
matters: defence, foreign affairs and communications. All the princely states were invited to send
representatives to India's Constituent Assembly, which was formulating a constitution for the whole
of India. They were also encouraged to set up constituent assemblies for their own states. Most states
were unable to set up assemblies in time, but a few states did, in particular Saurashtra
Union, Travancore-Cochin and Mysore. Even though the States Department developed a model
constitution for the states, in May 1949, the rulers and chief ministers of all the states met and agreed
that separate constitutions for the states were not necessary. They accepted the Constitution of India
as their own constitution. The states that did elect constituent assemblies suggested a few
amendments which were accepted. The position of all the states (or unions of states) thus became
equivalent to that of regular Indian provinces. In particular, this meant that the subjects available for
legislation by the central and state governments was uniform across India.[5]

1
Menon, The Story of Integration of the Indian States 1956.

4
In the case of Jammu and Kashmir, the representatives 2to the Constituent Assembly requested that
only those provisions of the Indian Constitution that corresponded to the original Instrument of
Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the
Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to
the Central Government would be applied to Jammu and Kashmir only with the concurrence of the
State's constituent assembly. This was a "temporary provision" in that its applicability was intended
to last till the formulation and adoption of the State's constitution.3 However, the State's constituent
assembly dissolved itself on 25 January 1957 without recommending either abrogation or
amendment of the Article 370. Thus the Article has become a permanent feature of the Indian
constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu
and Kashmir, the latest of which was in April 2018.

370. Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything contained in this Constitution,—

(a) The provisions of article 238 shall not apply now in relation to the state of Jammu and
Kashmir;[a]
(b) The power of Parliament to make laws for the said state shall be limited to—

(i) Those matters in the Union List and the Concurrent List which, in consultation with
the Government of the State, are declared by the President to correspond to matters specified
in the Instrument of Accession governing the accession of the State to the Dominion of
India as the matters with respect to which the Dominion Legislature may make laws for that
State; and

(ii) Such other matters in the said Lists as, with the concurrence of the Government of the
State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person
for the time being recognized by the President on the recommendation of the Legislative
Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting
on the advice of the Council of Ministers of the State for the time being in office.[1][12][b]

2
Noorani, Article 370 (2011, p. 4): The representatives of Jammu and Kashmirwere Sheikh Abdullah, Mirza Mohammad
Afzal Beg, Maulana Mohammad Saeed Masoodi and Moti Ram Bagda. They joined the Constituent Assembly on 16
June 1949.
3
Article 370, granting special status to the state, is permanent: Jammu and Kashmir High Court.

5
 (c) The provisions of article 1 and of this article shall apply in relation to that State;
(d) Such of the other provisions of this Constitution shall apply in relation to that State
subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of
Accession of the State referred to in paragraph (i) of sub-clause (e) shall be issued except in
consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the
last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-
clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given
before the Constituent Assembly for the purpose of framing the Constitution of the State is
convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by
public notification, declare that this article shall cease to be operative or shall be operative
only with such exceptions and modifications and from such date as he mayspecify:
Provided that the recommendation of the Constituent Assembly of the State referred to in
clause (2) shall be necessary before the President issues such a notification 4

4
"The Constitution of India (1949)" (PDF). Lok Sabha Secretariat. pp. 1122–1123.

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 ANALYSIS

The clause 7 of the Instrument of Accession signed by Maharaja Hari Singh declared that the State
could not be compelled to accept any future Constitution of India. The State was within its rights to
draft its own Constitution and to decide for itself what additional powers to extend to the Central
Government. The Article 370 was designed to protect those rights.5] According to the constitutional
scholar A. G. Noorani, the Article 370 records a 'solemn compact'. Neither India nor the State can
unilaterally amend or abrogate the Article except in accordance with the terms of the Article.6

Article 370 embodied six special provisions for Jammu and Kashmir:7

1. It exempted the State from the complete applicability of the Constitution of India. The State
was allowed to have its own Constitution.
2. Central legislative powers over the State were limited, at the time of framing, to the three
subjects of defence, foreign affairs and communications.
3. Other constitutional powers of the Central Government could be extended to the State only
with the concurrence of the State Government.
4. The 'concurrence' was only provisional. It had to be ratified by the State's Constituent
Assembly.
5. The State Government's authority to give 'concurrence' lasted only until the State Constituent
Assembly was convened. Once the State Constituent Assembly finalised the scheme of
powers and dispersed, no further extension of powers was possible.

5
Kumar, The Constitutional and Legal Routes (2005), p. 97
6
. Das Gupta, Jammu and Kashmir (2012), p. 187.

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 6. The Article 370 could be abrogated or amended only upon the recommendation of the State's
Constituent Assembly.7
7. Once the State's Constitutional Assembly convened on 31 October 1951, the State
Government's power to give `concurrence' lapsed. After the Constituent Assembly dispersed
on 17 November 1956, adopting a Constitution for the State, the only authority provided to
extend more powers to the Central Government or to accept Central institutions vanished.

CONSTITUENT ASSEMBLY OF THE STATE OF JAMMU AND

KASHMIR

The establishment of the Jammu and Kashmir Constituent Assembly in September 1951 was an
event off great significance in the political history of the State.8 The Constituent Assembly met on
31st October, 1951. 9It started its work on November 5, 1951 at Srinagar. It was equipped with the
power to frame the Constitution for the State. One of the senior most members Maulana Masoodi
was appointed the protem Chairman of the Assembly 10. The next day Gulam Mohamad Sadiq was
elected the President of the Assembly. It was inaugurated with a historical speech of the Prime
Minister of the State Sheikh Mohammed Abdullah.11

The task off Constitution making entered a decisive phase when in the 12th session of the
Constituent Assembly, held from September 29, 1956 to November 19, 1956, the drafting committee
on October 10, 1956 presented the draft Constitution8 which after detailed discussions was finally
adopted on 17th November, 1956 and given effect to from January 26, 1957. The Constitution of
Jammu and Kashmir is a written document having 158 Sections divided into thirteen parts. There are
seven schedules attached to it. The State of Jammu and Kashmir thus acquired the distinction of
having a separate Constitution for the administration of the State in place of the provisions of Part VI

7
Kumar, The Constitutional and Legal Routes (2005), pp. 97–98

8
A.S. Anand, The Constitution of Jammu and Kashmir-Its Development and Comments 187 (2010).

9
Government of Jammu and Kashmir, Report of the State Autonomy Committee 42 (2000).

10
K.K. Wadhwa, Constitutional Autonomy-A Case Study of Jammu and Kashmir 32 (2001).

11 Mohan Krishen Teng Article 370 88 (2002)

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of the Constitution of India which governs all other States of the Union.9 Before 26th January 1957,
the internal government of the State even after its accession, was governed by the Jammu and
Kashmir Constitution Act, 1939.12

PRESIDENTIAL ORDERS

In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President,
with the concurrence of the Government of the State of Jammu and Kashmir made a series of orders.

PRESIDENTIAL ORDER OF 1950

The Presidential order of 1950, officially The Constitution (Application to Jammu and Kashmir)
Order, 1950, came into force on 26 January 1950 contemporaneously with the Constitution of India.
It specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of
Accession as required by the clause b(i) of the Article 370.

Thirty eight subjects from the Union List were mentioned as matters on which the Union legislature
could make laws for the State. Certain articles in ten of the twenty-two parts of the Indian
Constitution were extended to Jammu and Kashmir, with modifications and exceptions as agreed by
the state government 13.

This order was superseded by the Presidential order of 1954.

PRESIDENTIAL ORDER OF 1952

The Presidential order of 1952 was issued on 15 November 1952, at the request of the state
government. It amended the Article 370, replacing the phrase "recognised by the President as
the Maharaja of Jammu and Kashmir" by "recognized by the President on the recommendation of
the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the
abolition of the monarchy of Jammu and Kashmir.

12
Act XIV of Samwat 1996 (A.D. 1939)

13
Das Gupta, Jammu and Kashmir (2012), p. 187

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Background: The Constituent Assembly of Jammu and Kashmir was elected in 1951 and convened
on 31 October 1951. The Basic Principles committee of the Constituent Assembly recommended the
abolition of the monarchy, which was unanimously approved by the Assembly on 12 June 1952. In
the same month, the Hindu-dominated Jammu Praja Parishad submitted a memorandum to the
President of India demanding the full application of the Indian Constitution to the State. The
Government of India summoned a delegation from Jammu and Kashmir in Delhi for discussions on
the relations between the Centre and the State. After discussions, the 1952 Delhi Agreement was
reached 14.

The State's prime minister Sheikh Abdullah was slow to implement the provisions of the Delhi
Agreement. However, in August 1952, the State Constituent Assembly adopted a resolution
abolishing the monarchy and replacing the position by an elected Head of State (called Sadar-i-
Riyasat). Despite reservations on this piecemeal approach to adopting provisions, the Central
Government acquiesced, leading to the Presidential Order of 1952. The Legislative Assembly
elected Karan Singh, who was already acting as the Prince Regent, as the new Sadar-i-Riyasat. 15.

PRESIDENTIAL ORDER OF 1954

The Presidential order of 1954, officially The Constitution (Application to Jammu and Kashmir)
Order, 1954 came into force on 14 May 1954. Issued with the agreement of the State's Constituent
Assembly, it was a comprehensive order seeking to implement the 1952 Delhi
Agreement.[24] Arguably, it went further than the Delhi Agreement in some respects.[25]

The provisions implementing the Delhi Agreement were: 16

1. Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly
called 'state subjects'). Simultaneously, the Article 35A was added to the Constitution,
empowering the state legislature to legislate on the privileges of permanent residents with
regard to immovable property, settlement in the state and employment.
2. The fundamental rights of the Indian constitution were extended to the state. However, the
State Legislature was empowered to legislate on preventive detention for the purpose of

14
Das Gupta, Jammu and Kashmir (2012), p. 187

15
Das Gupta, Jammu and Kashmir (2012), p. 187

16
Chowdhary, Politics of Identity and Separatism (2015), p. 48

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 internal security. The State's land reform legislation (which acquired land without
compensation) was also protected.
3. The jurisdiction of the Supreme Court of India was extended to the State.
4. The Central Government was given power to declare national emergency in the event of
external aggression. However, its power to do so for internal disturbances could be exercised
only with the concurrence of the State Government.

In addition, the following provisions which were not previously decided in the Delhi Agreement
were also implemented:

1. Financial relations between the Centre and the State were placed on the same footing as the
other States. The State's custom duties were abolished.
2. Decisions affecting the disposition of the State could be made by the Central Government,
but only with the consent of the State Government.

Background: The State Government's decision to abolish the monarchy led to increased agitation by
the Jammu Praja Parishad, which found support among the Ladakhi Buddhists and the Hindu parties
of India.[28] In response, Sheikh Abdullah started questioning the value of Kashmir's accession to
India, leading to a loss of support among his Cabinet members. On 8 August 1953, Sheikh Abdullah
was dismissed from the post of prime minister by the Sadar-i-Riyasat Karan Singh and his erstwhile
deputy Bakshi Ghulam Mohammad was appointed in his place. Abdullah and several of his
colleagues were arrested and put in prison.17

The purged Constituent Assembly, with 60 of the original 75 members, unanimously adopted on 6
February 1954, the recommendations of its Basic Principles Committee and the Advisory Committee
on Fundamental Rights and Citizenship.18 According to the Basic Principles Committee: While
preserving the internal autonomy of the State, all the obligations which flow from the fact of
accession and also its elaboration as contained in the Delhi Agreement should find an appropriate
place in the Constitution. The Committee is of the opinion that it is high time that finality in this
respect should be reached and the relationship of the State with the Union should be expressed in
clear and precise terms.

FURTHER PRESIDENTIAL ORDERS

17
Cottrell, Kashmir: The vanishing autonomy (2013), p. 171.
18
Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience

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In addition to these original orders, forty seven Presidential orders have been issued between 11
February 1956 and 19 February 1994, making various other provisions of the Constitution of India
applicable to Jammu and Kashmir. All these orders were issued with the 'concurrence of the
Government of the State' without any Constituent Assembly.The effect of these orders has been to
extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of
Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India. All these orders have
been issued as amendments to the Presidential Order of 1954, rather than as replacements to it,
presumably because their constitutionality was in doubt. This process has been termed the 'erosion' of
the Article 37019.

AUTONOMY OF JAMMU AND KASHMIR: STRUCTURE AND LIMITATIONS

India's constitution is a federal structure. The subjects for legislation are divided into a 'Union List', a
'State List' and a 'Concurrent List'. The Union List of ninety-six subjects, including defence, military
and foreign affairs, major transport systems, commercial issues like banking, stock exchanges and
taxes, are provided for the Union government to legislate exclusively. The State List of sixty-six
items covering prisons, agriculture, most industries and certain taxes, are available for States to
legislate on. The Concurrent List, on which both the Centre and States may legislate include criminal
law, marriage, bankruptcy, trade unions, professions and price control. In case of conflict, the Union
legislation takes precedence. The 'residual power', to make laws on matters not specified in the
Constitution, rests with the Union. The Union may also specify certain industries, waterways, ports
etc. to be 'national', in which case they become Union subjects.20

In the case of Jammu and Kashmir, the 'Union List' and the 'Concurrent List' were initially curtailed
to the matters ceded in the Instrument of Accession, but they were later extended with the
concurrence of the State Government. The 'residual power' continues to rest with the State rather than
the Union. According to the State Autonomy Committee, ninety-four of the ninety-seven items in the
Union List currently apply to Jammu and Kashmir. The provisions of the Central Bureau of
Intelligence and Investigation and preventive detention do not apply. Of the 'Concurrent List',
twenty-six of the forty-seven items apply to Jammu and Kashmir. The items of marriage and divorce,
infants and minors, transfer of property other than agricultural land, contracts and torts, bankruptcy,
trusts, courts, family planning and charities have been omitted, i.e., the State has exclusive right to

19
Asymmetric Federalism (2016), p. 546.

20
Cottrell, Kashmir: The vanishing autonomy (2013), p. 165.

12
legislate on those matters. The right to legislate on elections to state bodies also rests with the State
21
.

THE DELHI AGREEMENT 1952

Between the 1952 to 1957 when the Constituent Assembly of Jammu and Kashmir was busy in
making the Constitution for the State, certain important matters relating to the relationship of the
State with the Union were addressed simultaneously. As discussed already the acceptance of the
Basic Principles Committee report on 12th June, 1952 by the Constituent Assembly of Jammu and
Kashmir which recommended that hereditary Rulership shall be terminated and office of the Head of
the State shall be elective, made it necessary to make corresponding adjustments in the Constitution
of India also. Moreover, the fact that the State of Jammu and Kashmir was the Constituent unit of the
Union of India led to the necessity to finalize the position of the State in regard to certain important
issues like Residuary powers, Citizenship, Fundamental rights, National Flag, Emergency provisions
etc. It was in this background, discussions were held between the representatives from the State and
their Union Government which ended in an historic agreement between Pt. Jawahar Lal Nehru and
Sheikh Abdullah known as ‘Delhi Agreement’. Its terms were announced by Pt. Jawahar Lal Nehru
in Lok Sabha on 24th July, 1952 and in the Rajya Sabha on 5th August, 1952.The terms of the
agreement were explained to the Constituent Assembly of Jammu and Kashmir by the State’s Prime
Minister Sheikh Mohammad Abdullah on August 11, 1952. The main features of this agreement
were;22
• (1) It was agreed that while the residuary powers of Legislation vested in the Centre in
relating to all other States but of Jammu and Kashmir these vested in the State itself and should
continue as such. 

• (2) In accordance with Article 5 of the Constitution of India, persons who have their
domicile in Jammu and Kashmir shall be regarded as citizens of India. It was further agreed that the
State Legislature shall have power to make laws for conferring special rights and privileges on the

21
Cottrell, Kashmir: The vanishing autonomy (2013), p. 165.

22
Parliamentary Debates , Lok Sabha, Official Report Part II, Vo. III, No. 16, cols. 4501-4524.

13
‘State Subjects’ in view of the State Subject Notifications of 1927 and 1932.23
• (3) The fundamental rights, which are contained in the Constitution of India could not be
conferred on the residents of Jammu and Kashmir State in their entirety. The need for providing
suitable modifications, amendments and exceptions as the case may be in the Fundamental Rights
Chapter of the Constitution of India in its application to the State was admitted. The question which
remained undermined was whether the Chapter of Fundamental Rights should form part of the
Constitution of Jammu and Kashmir or that of Union Constitution.24
• It was agreed that the Supreme Court of India should have original Jurisdiction in respect of
dispute mentioned in Article 131 of the Constitution of India in regard to fundamental rights which
would be agreed to by the State. 

• For historical and other reasons connected with the freedom struggle in the State, the need for
the continuance of the State Flag was recognized. It was also recognized the flag would occupy
supremely distinctive place in the State of Jammu and Kashmir as in the rest of India. 

• The power to grant reprieves, pardons and remission of sentences etc should also vest in the
President of India. 

• The Government of India appreciated the principle proposed by the Basic Principles
Committee as adopted by the Constituent Assembly of the State in regard to the
abolition of the hereditary rulership of the State. It was mutually agreed upon that the Head of the
State should be the person recognized by the President of India on the recommendation of the
Legislature of the State and should hold office during the pleasure of the President of India.
• Article 352 empowering the President to proclaim a general emergency in the State would
apply to the State of Jammu and Kashmir with the condition that in regard to internal disturbance, it
would apply to the State at the request or with the concurrence of the Government of the State. 

• In regard to financial integration it was agreed that it would be necessary to evolve some sort
of financial arrangement between the State and the Indian Union. The arrangements had to be
gradually worked out. 

• It was agreed that Article 324 which already applied to State in so far as it relates to elections
to Parliament and to through the Constitution (Application to Jammu and Kashmir) Order, 1950

23 th th
Notification No. 1-L/84, dated 20 April, 1927 read with State Notification No. 13/L, dated 27 June, 1932.

24
Rajay Sabha Debates (July28-August5, 1952), Vol. I, Nos. 24-31, Cols. 2970-2995

14
would continue to be applicable to the State. The Jammu and Kashmir Constituent Assembly
discussed this arrangement and finally adopted a motion of approach on August 21st, 1952.
The agreement was discussed in the Union Parliament on August 7, 1952 and accepted. After the
perusal of the main features of the Delhi Agreement It is clear that the State of Jammu and Kashmir
enjoyed a special position vis-à-vis Indian Union. The Delhi Agreement symbol a mutual recognition
of imperative of Nation cohesion and of the ‘essential interest of the State of Jammu and Kashmir.
By this agreement certain subjects were transforming to the Union with reservations considered
necessary in the interest of the security of the State, of unhindered implements of their programme
for land reforms and of protecting the State from economic exploitation by people who were not
permanent residents of Jammu and Kashmir.

In the words of Sheikh Abdullah, the then Prime Minister of Jammu and Kashmir: In arriving at this
arrangement, the main consideration before our Government was to secure a position for the State
which would be consistent with the requirements of maximum autonomy for the local organs of State
Power which are the ultimate source of authority in the State while discharging obligations as a unit
of the Federation.25

APPLICABILITY OF THE INDIAN LAW TO JAMMU AND KASHMIR

Acts passed by Indian Parliament have been extended to Jammu and Kashmir over a period of time.26

 All India Services Act

 Negotiable Instruments Act
 Border Security Force Act
 Central Vigilance Commission Act
 Essential Commodities Act
 Haj Committee Act
 Income Tax Act
 The Central Laws (Extension To Jammu And Kashmir) Act, 1956

25
Government of Jammu and Kashmir, India and Kashmir-Constitutional Aspect, p. 18

26
"Central Enactments Applicable To State of Jammu And Kashmir in Alphabetical Order"

15
 The Central Laws (Extension To Jammu And Kashmir) Act, 1968

The non-applicability of National Human Rights Commission (NHRC) Act by claiming recourse to
Article 370 was set aside in 2010.27

ARTICLE 370 : A HISTORICAL VIEW

The genesis of the demand for the Constituent Assembly of India can be traced in the
pronouncements of our revered nationalist leaders and the resolutions of the Indian National
Congress. Demand for a Constituent Assembly as part of its official policy was made by the Indian
National Congress in 1934.The demand for a Constituent Assembly was thereafter reiterated in a
number of Congress resolutions.28

This demand was, however, resisted by the British Government until the outbreak of World War II
when external circumstances forced them to realize the urgency of solving the Indian Constitutional
problem. In 1940, the Coalition Government in England recognised the principle that Indians should
themselves frame a new Constitution for autonomous India29. In March, 1942, when the second
world war was going on and Japanese were at the doors of India, the British Government issued a
Draft Declaration containing the proposals on the future of India. For discussing the draft with the
Indian leaders, British Cabinet sent . Sir Stafford Cripps, a member of the War Cabinet to India.
Though the negotiations between him and the nationalist leaders proved infurctuous, what is,
however, significant is that Cripps accepted the idea that an elected body of Indians should frame the
Indian Constitution.30The British Government on March 11, 1942 declared to set up a Constituent
Assembly to set up in India after the end of the Second World War to determine India’s Constitution.
With the assumption of power by Labour Party in England, there was a definite change in the attitude
of the British Government in relation to India. In the month of March, 1946, British Government sent
to India a Cabinet Mission to explore the possibility of an immediate settlement of the Indian

27
"Order extraordinaire: J&K's immunity set aside by the NHRC"

28
H.R, Khanna, Making of India’s Constitution 5 (1981)

29
D.D. BASU , an introduction to The Constition of India 14

30
For the text of the declaration of the British Government, see Indian Constitutional Documents, Munshi Papers, Vol.
II, p.5.

16
problem. One of the avowed purpose of the Mission was to assist the Viceroy in setting up in India
the machinery by which Indians could devise their own Constitution. The Cabinet Mission made its
plan public on May 16, 1946. The plan laid down detailed provisions in relation to procedure for
election of the future Constituent Assembly of India. In July 1946, the members of the Constituent
Assembly were elected in accordance with the basis of the scheme of the Cabinet Mission Plan. It
held its first sitting on the 9th December, 1946.9 But the Muslim League boycotted the Constituent
Assembly. Muslim League demanded another Constituent Assembly for Muslim India. Signifying its
acquiescence, on 26th July, 1947, the Governor-General announced the setting up of a separate
Constituent Assembly for Pakistan. The representatives of Bengal, Punjab, Sind, North Western
Frontier Province, Baluchistan and the Sylhet district of Assam (which had joined Pakistan by a
referendum) now ceased to be members of the Constituent Assembly of India. As a result, there was
a fresh election in the new provinces of West Bengal and East Punjab constituting Indian territory.31
When Maharaja Hari Singh acceded to India on 26 October 1947, he ceded to the Dominion
Government, powers with regard to the subjects the other Indian States had also delegated to the
Dominion. The subjects were listed in the Schedule attached to the Instrument of Accession . Hari
Singh did not commit himself to accept any future Constitution of India. However, he reserved the
right to enter into agreements with the Government of India under any future Constitution of India.
The Instrument of Accession did not effect the continuance of the sovereignty of the Ruler in and
over the State or the validity of any law in force in the State, save as provided by or under the
Instrument of Accession. 32

The exclusion of the Jammu and Kashmir State from the constitutional organization of India and its
reconstitution into a separate political identity based upon the Muslim precedence had serious
repercussions both inside and outside the State. Evidently, no stable and organic relationship between
the Union and the State could be constructed on communal balances, which the Conference leaders
sought to establish. The leaders of the National Conference, consciously sought to exclude Jammu
and Kashmir from the basic structure of the Indian Constitution, which in its broad framework
established a federal partnership based upon division of powers between the Union and the States;
described the scope and limits of authority of state power and the nature and extent of individual
liberty and freedom and envisaged protection against discrimination of grounds of religion, caste and
region and laid down legal remedies against arbitrary exercise of authority. The exclusion of the
State from the constitutional organization of India isolated the State from the mainstream of the

31
Government of India. White Paper on The Indian States, p. 77

32
Kashmir Article 370 by Mohan Krishen Teng, available at, http://koausa.org/article370/doc/article370.pdf

17
Indian political development and in due course of time pushed it into a separate orbit of political
operatives, which ultimately isolated it from the rest of the country.

CONSTITUTION OF JAMMU & KASHMIR

Preamble and Article 3 of the Constitution of Jammu and Kashmir states that the State of Jammu and
Kashmir is and shall be an integral part of the Union of India.[40] Article 5 states that the executive
and legislative power of the State extend to all matters except those with respect to which Parliament
has power to make laws for the State under the provisions of the Constitution of India. The
constitution was adopted on 17 November 1956 and came into force on 26 January 1957.33

The Constitution of Jammu and Kashmir is in no way repugnant to the Constitution of India but it is
complementary to it. The hallmark of the present Constitution is a complete change from the past
monarchical form of government to a parliamentary form of government. It is partly rigid and partly
flexible. Unlike other states of India, the State of Jammu and Kashmir enjoys special powers and
privileges on account of having its own Constitution. As Jammu and Kashmir is governed by two
sets of Constitutional provisions – the Constitution of India as applicable, subject to certain omission
and modifications, by the Constitution (Application to Jammu and Kashmir) Order, 1954 34 and the
Constitution of Jammu and Kashmir 1957, a study off those provisions of Constitution of Jammu and
Kashmir 1957, a study of those provision of Constitution of Jammu and Kashmir which explain the
relationship between the State and Indian Union is indeed essential so as to understand fully the
extent of autonomy enjoyed by the State vis-à-vis Indian Union.

The important provisions of the State Constitution which are related with relations of the State with
the Union and which reveal a clear account of extent of State autonomy enjoyed by the State of
Jammu and Kashmir as a constituent part of India Union are as follows:

33
Constitution of Jammu and Kashmir (PDF). Official website of Jammu and Kashmir Legislative Assembly on
National Informatics Centre, India. Retrieved 3 April 2015.

34 th
C.O. 48, published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14 May, 1954. Gazette of India
(Extraordinary), Part II, Section 3, p. 821.

18
 1. The most important feature of the preamble to the Constitution of Jammu and Kashmir is that
it accepts the fact of accession of the State of Jammu and Kashmir to Union of India. One of
the objectives of the Preamble to the State Constitution is “to further define the existing
relationship of the State with Union of India as an integral part thereof...”

2. Sections 1,2,3,4,5,6,7,8 and 158 came into force on 17th November, 1956 and the remaining

Sections came into force on 26th January, 1957 which day is referred to in this Constitution
as the commencement of this Constitution. That the people of Kashmir have chosen January
26, the Republic Day of India, as the date for full enforcement of their constitution is
evidence of the emotional integration of the State with the rest of India.35
3. Section 3 declares that the State of Jammu and Kashmir is and shall be an integral part of the
Union of India. To further strengthen the relationship of the State with the Union, the
Constituent Assembly has put this Section beyond the amending power of the Legislature of
Jammu and Kashmir.36
4. The territory of the State of Jammu and Kashmir shall comprise of all the territories which on
the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the
State.37 It means the territory of the State of Jammu and Kashmir also includes the area which
has been illegally occupied by Pakistan as it was the whole area of the State which had
acceded to Indian Union. Whereas Indian Constitution defines the territory of Jammu and
Kashmir as the territory which immediately before the commencement of this Constitution
was comprised in the Indian State of Jammu and Kashmir.38 As the State of Jammu &
Kashmir is a constituent Unit of India, The territory of the State of Jammu and Kashmir as
defined in State Constitution automatically becomes part of Indian Union. The importance of
the provisions relating to the State territory can be assessed from the fact that Section4 of the
States Constitution is immune from amendment.39

35
A.S. Anand, The Constitution of Jammu and Kashmir-Its Development and Comments 187 (2010)

36
The Constitution of Jammu and Kashmir, Section 147.

37
Id., Sec. 5.

38
Art. 1, Sch. 1, The Constitution of India.

39
The Constitution of Jammu and Kashmir, Section 147.

19
 5. The State Constitution provides that the executive and legislative power of the State extends
to all matters except those with respect to which the parliament has the power to make laws
40
for the State under the Provisions of the Constitution of India. The Constitution
(Application to Jammu and Kashmir) Order 1954, as amended from time-to-time, applies to a
number of entries of the Union List and the Concurrent List to Jammu and Kashmir. Section
5 is merely confined to matters over which the State Legislature can legislate.41 This Section
has also been put beyond the amending power of the State legislature.42

One of the important characteristics of the Jammu and Kashmir Constitution is that all functions of
the Governor except those under Sections 36, 38 and 92 shall be exercised by him only on the advice
44
of the Council of Ministers 43. The Governor of the advice of the Chief Minister. The discretionary
power of the Governor may not seem important if there is a party in the legislature which has an
overall majority and whose leader enjoys its confidence, but it becomes important in a situation
where there is no such party and a coalition Government is essential. It will be then for the Governor
to consider what coalitions are possible and choose those which are most likely to endure.

40
Id., sec.-5

41
S. Mubarik Shah Naqashbandi v. I.T.O., AIR 1971 J&K 120

42
The Constitution of Jammu and Kashmir, Section 147.

43 Section 35 The Constitution of Jammu & Kashmir

44
Substituted for ‘Prime Minister’ by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, Section 2.

20
FACTORS RESPONSIBLE FOR LIMITED ABSORPTION OF JAMMU AND
KASHMIR WITHIN INDIAN CONSTITUTIONAL STRUCTURE

With the accession of the State of Jammu and Kashmir to India, jurisdiction in matters of External
Affairs, Defence and Communications was transferred to the Government of India and the Union
Parliament was given power to make laws for the State for the purposes of those three matters
only.21 In June 1949, the Yuvraj Karan Singh, on the advice of his Council of Ministers nominated
four representatives to the Indian Constituent Assembly. They took their seats in the Assembly on
June 16, 1949. But whereas all the other 564 Princely States decided to surrender all their residual
autonomy to the Indian Union and accepted all the terms of the Indian Constitution in full, the State
of Jammu and Kashmir decided to retain its autonomy, keeping the door open, however, for further
integration if and when the Union and the State considered it fit according to circumstances.45
So, even after execution of Instrument of Accession internal sovereignty over the State of
Jammu and Kashmir remained with the ruler of the State as provided by clause 8 of the
Instrument of Accession:
Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or
save as provided by or under this Instrument, the exercise of any powers, authority and rights
now enjoyed by me as Ruler of this State or the validity of any law at present in force in this
State.46This position is also reiterated by Supreme Court of Indian in the case of Prem Nath
Kaul V. the State of Jammu and Kashmir in which it observed:
We must, therefore, reject the argument that the execution of the Instrument of Accession,
affected in any manner the legislative, executive and judicial power in regard to the
Government of the State, which then vested in the Ruler of the State. Again, the Supreme Court
of India in the case of Rehman Shagoo V State of Jammu and Kashmir said: 47

45
A.S. ANAND , The Constitution of Jammu &Kashmir It’s Development and comments

Harish K. Puri, “State Autonomy and Nation Building: A Case Study of Jammu and Kashmir” in K.R. Bombwall (ed.)
46

National Power and State Autonomy 167

47 A.I.R 1965 SCI

21
When certain subjects were made over to the Government of India by the Instrument of
Accession, the State retained its power to legislate even on those subjects so long as the State
law was not repugnant to any law made by the Central Legislature:
Moreover, under clause (7) of the Instrument of Accession, the State of Jammu and Kashmir did
not commit itself to the acceptance of any future Constitution of India nor fetter its discretion
to enter into agreements with the Government of India under any such future Constitution.
So, the Government of Jammu and Kashmir did not accept the Constitution of India as a
Constitution for the State.48Even after accession to India Dominion, the State of Jammu and
Kashmir continued to be governed by the Jammu and Kashmir Constitution Act, 193949 . The
Government of India could not force the State to accept the Constitution for that would violate
the agreed terms of the association of Kashmir with India.28 The State had voluntarily
surrendered three matters only and the Government of India could not enlarge the sphere of its
jurisdiction at its own discretion.So, whereas the Constitution of India laid down Constitutional
provisions, not only for the former Provinces of British India but also for the other Princely
States as full-fledged Constituent units of the Union, in the case of Kashmir, it had to make
special provisions to cover that particular case. Considering that State of Jammu and Kashmir’s
representatives (including Sheikh Abdullah) had insisted in the Constituent Assembly that
their State’s relationship with India would be based only with on the terms of the Instrument of
Accession and knowing it well that the Jammu and Kashmir’s question was hanging delicately
in the United Nation Security Council and any attempt by India to coerce the State into a
merger with the Constitution of India have raised hackles inter nationally – a situation which
the Indian Government under Nehru’s leadership was temperamentally not attuned to, it was
decided to have an interim arrangement in the Constitution of India regarding the State of
Jammu and Kashmir. Accordingly, the draft Article 306-A was introduced in the Constituent
Assembly and thereafter formally added to the thereafter formally added to the Constitution of
India as Article 37050. Dr. B.R. Ambedkar, proclaimed as the architect of the Indian
Constitution, was apparently opposed to Article 306-A. After hearing Sheikh Abdullah
patiently, Dr. B.R. Ambedkar told him: “You want that India should defend Kashmir, India

48 A.S. ANAND , The Constitution of Jammu &Kashmir It’s Development and Comments

49
Act XIV of Samwat 1996 (A.D.; 1939).

50
Arvind Lavakare, The Truth about Article 370 19 (2005)

22
should dvelop Kashmir and Kashmiri's should have equal rights as the citizens of India but you
do not want India and any citizen of India to have any rights in Kashmir. I am the Law Ministers
of India. I cannot betray the interest of my country. It was then that Nehru asked Ayyangar to
draft what was number Article 306-A.35 In the draft Constitution of India.”

CONCLUSION

The State of Jammu and Kashmir in the only State of the Indian Union which negotiated the terms of
its membership with the Union. At the time of making of the Constitution of Indian Constitution as a
whole and merged themselves in the national mainstream, the State of Jammu and Kashmir refused
to accept Constitution of India as a Constitution for the State and showed its inability to extend the
jurisdiction of Union Government from what has been provided in the Instrument of Accession till
the Constituent Assembly of the State of Jammu and Kashmir had taken a decision in the matter.
Moreover, the special circumstances at the time of the framing of the Constitution of India. Part of
the State was under the illegal occupation of Pakistan, entanglement of Government of India over
Kashmir with United Nations. Government of India’s commitment to the people of the State to
decide for themselves whether they would remain with the Republic of India or wish to go out of it
forced the Constituent Assembly of India to make an interim and special arrangement for the State of
Jammu and Kashmir. The State of Jammu and Kashmir had voluntarily surrendered jurisdiction to
Union Government in External Affairs and Common relation t Defence and Government of India
could not enlarge the sphere of its it would virlate agreed terms of the association of the State with
India. Thus Article 370 was incorporated in the Constitution of India which confers special status to
the State of Jammu and Kashmir. It contains temporary provisions with respect to State and
empowers the President to define the Constitutional position of the State from time to time in the
light of the situations existing therein. It is the parent order of 1954, as amended time to time, which
defines the constitution position and extent of autonomy enjoyed by State within Indian Union.

The State of Jammu and Kashmir constitutes a special category as it is the only State of Indian Union
which have its own Constitution and the flag. It enjoys a considerable internal sovereignty as a
distinctive variation of Indian Federal system. There is no parallel to it in the Indian federal polity in
regard to quantum of autonomy enjoyed by it. The federal relation between the Union and the State
of Jammu and Kashmir respects “State rights” more than in case of other States of Union.



23
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Woodman, Practising Self-Government: A Comparative Study of Autonomous Regions,
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4. Hassan, Khalid Wasim (2009), History Revisited: Narratives on Political and Constitutional
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